August 15, 2019
Retroactive Legislation: A Primer for Congress
Black’s Law Dictionary defines a retroactive law as a law
retroactively impose new collateral consequences for past
“that looks backward or contemplates the past, affecting
criminal convictions, such as mandatory sex offender
acts or facts that existed before the act came into effect.”
registration, see Smith v. Doe, 538 U.S. 84 (2002).
While Congress often considers legislation that would
apply retroactively, the Constitution imposes some limited
Bills of Attainder
constraints on such laws. This In Focus outlines those legal
Article I, Section 9, Clause 3 of the Constitution also bans
constraints on Congress’s power and key considerations for
bills of attainder—statutes that directly impose punishment
Congress related to retroactive legislation. (Related
by legislation rather than through court proceedings. A law
Constitutional provisions that apply only to state legislation,
constitutes a bill of attainder if it (1) applies with specificity
such as the Contracts Clause, are not discussed here.)
to an identified individual or group and (2) imposes
punishment. Not all bills of attainder are retroactive, but
Retroactive Punishment
many are because they tend to impose sanctions based on
Laws that retroactively impose punishment raise unique
past conduct. For example, in Cummings v. Missouri, 71
questions under the Constitution, particularly with respect
U.S. 277 (1867), the Supreme Court struck down as a bill of
to the Ex Post Facto and Bill of Attainder Clauses. Those
attainder postbellum legislation that effectively barred
provisions (and analogous provisions that apply to the
former Confederate sympathizers from holding certain jobs.
states) prohibit enactment of certain laws that are penal in
nature, regardless whether they are styled as criminal laws.
The Supreme Court outlined the framework for analyzing
bill of attainder claims in Nixon v. Administrator of General
Ex Post Facto Clause
Services, 433 U.S. 425 (1977). Nixon’s multipronged test
The Ex Post Facto Clause, contained in Article I, Section 9,
for determining whether a law imposes punishment
Clause 3 of the Constitution, provides: “No . . . ex post
considers the historical application of the Bill of Attainder
facto Law shall be passed.” The phrase “ex post facto,”
Clause, whether the challenged law in fact functions as
Latin for “after the fact,” refers to laws that apply
punishment, and the motivations of Congress in passing the
retroactively. While the Ex Post Facto Clause on its face
law. The inquiry is highly fact-based. But, in general, courts
might appear to bar all retroactive legislation, courts have
rarely strike down a law as a bill of attainder if it serves a
applied the Clause only to penal laws. In Calder v. Bull, 3
valid legislative purpose, even if the law targets a specific
U.S. 386 (1798), Justice Samuel Chase stated that the
individual. As the Court in Nixon noted, a nonpunitive
Clause applies to any law that renders criminal an action
statute may properly create “a legitimate class of one.”
that was legal when it was taken, aggravates the severity of
a crime, increases the resulting punishment, or alters the
For example, in Kaspersky Lab, Inc. v. Department of
applicable rules of evidence after the crime was committed.
Homeland Security, 909 F.3d 446 (D.C. Cir. 2018), the
In Johannessen v. United States, 225 U.S. 227 (1912), the
D.C. Circuit upheld a statute that barred federal agencies
Supreme Court declared that the Ex Post Facto Clause’s
from using products or services from the cybersecurity
“prohibition is confined to laws respecting criminal
company Kaspersky Lab. Although the statute applied
punishments, and has no relation to retrospective legislation
specifically to a single company, the court held that the law
of any other description.”
did not constitute punishment and was motivated by the
legitimate goal of protecting federal computers from cyber
Whether a law is penal in nature depends on its substance,
threats. By contrast, in Foretich v. United States, 351 F.3d
not its form. In Burgess v. Salmon, 97 U.S. 381 (1878), the
1198 (D.C. Cir. 2003), another panel of the same court held
Supreme Court explained that “the ex post facto effect of a
that a statute altering the visitation rights of a father who
law cannot be evaded by giving a civil form to that which is
had been accused of sexually abusing his child constituted
essentially criminal.” In that case, the Court held that a tax
an unconstitutional bill of attainder, in part because of the
increase enforceable by fines and imprisonment could not
imbalance between the burden the statute imposed and the
be applied to a sale of goods that took place before the act
statute’s “implausible nonpunitive purposes.”
was signed into law. On the other hand, courts have upheld
statutes that create retroactive civil penalties against Ex
Retroactive Civil Legislation
Post Facto challenges, even when the penalties at issue
Congress has much greater leeway to enact retroactive
exceeded the amount of actual damages. See, e.g., United
legislation in the civil sphere than in the criminal sphere.
States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608
However, certain constitutional limits apply, and courts
F.3d 871 (D.C. Cir. 2010). The Supreme Court has also
interpreting ambiguous statutes apply a general
upheld statutes that decrease the frequency of parole
presumption against retroactivity.
eligibility hearings, see California Dep’t of Corr. v.
Morales, 514 U.S. 499 (1995), and statutes that
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Retroactive Legislation: A Primer for Congress
Separation of Powers
unprecedented scope” and no rational relation to a
Retroactive legislation may raise various separation-of-
legitimate government interest.
powers concerns. For example, in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211 (1995), the Supreme Court held
Limits on Period of Retroactivity
unconstitutional on separation-of-powers grounds a statute
Regardless of the specific legal basis for a claim
that would have required federal courts to reopen final
challenging retroactive legislation, courts have recognized
judgments entered before its enactment because the law
that the Constitution limits how far back a retroactive law
interfered with the judicial power to rule with finality.
may reach. However, the Supreme Court has not
established firm time limits, and the appropriate period of
Due Process Limitations
retroactivity appears to be fact-specific.
The Fifth Amendment’s Due Process Clause prohibits the
government from depriving any person of “life, liberty, or
Statutes that reach back only a year or two generally do not
property, without due process of law.” Litigants have often
raise serious constitutional concerns. Congress routinely
challenged retroactive civil laws on due process grounds,
passes tax laws that apply to the full calendar year in which
alleging that such laws impermissibly create unforeseen
they are enacted, and has at times passed tax laws
liability for past actions. Due process review of retroactive
applicable to an entire calendar year that ended before
laws employs a version of the deferential rational basis test
enactment. The courts have upheld those laws against due
that normally applies to most legislation: the law needs only
process challenges, expressing approval of statutes that
to be “supported by a legitimate legislative purpose
establish “only a modest period of retroactivity . . . confined
furthered by rational means.” Pension Benefit Guar. Corp.
to short and limited periods required by the practicalities of
v. R.A. Gray & Co., 467 U.S. 717, 729 (1984).
producing national legislation.” United States v. Carlton,
512 U.S. 26 (1994).
Nonetheless, courts consider the retroactive application of a
statute separately from any prospective application,
By contrast, both the plurality and Justice Kennedy’s
subjecting retroactive laws to somewhat more exacting
opinion in Eastern Enterprises deemed excessive a 35-year
scrutiny than prospective laws. In Usery v. Turner Elkhorn
period of retroactivity. And, in Nichols v. Coolidge, 274
Mining Co., 428 U.S. 1 (1976), the Supreme Court rejected
U.S. 531 (1927), the Supreme Court struck down a tax that
the notion that “what Congress can legislate prospectively it
applied to a transaction that occurred 12 years before the
can legislate retrospectively,” explaining that justifications
statute was enacted, observing that Congress may legislate
for prospective legislation may be insufficient to support
“to prevent evasion and give practical effect to the exercise
retroactive effect. However, the Turner Elkhorn Court also
of admitted power, but the right is limited by the necessity.”
noted that “legislation readjusting rights and burdens is not
On the other hand, the Ninth Circuit has upheld a statute
unlawful solely because it upsets otherwise settled
that reached back seven years, holding that in that case a
expectations.” Rather, retroactive civil legislation violates
shorter period of retroactivity, such as one or two years,
due process only if it is “particularly harsh and oppressive”
“would have been arbitrary and irrational.” Montana Rail
or “arbitrary and irrational.” R.A. Gray & Co., 467 U.S. at
Link, Inc. v. United States, 76 F.3d 991 (9th Cir. 1996).
733 (internal quotes omitted).
Statutory Interpretation
The Takings Clause
Although the Constitution generally does not prohibit
The Fifth Amendment’s Takings Clause prohibits the
nonpunitive retroactive legislation, commentators and
taking of private property for public use without just
courts have noted that such legislation raises fundamental
compensation. A retroactive law that deprives a person of a
concerns about fairness because it imposes liability when it
vested property right may constitute a taking. In Eastern
is too late for regulated parties to alter their behavior. In
Enterprises v. Apfel, 524 U.S. 498 (1998), a plurality of the
Calder v. Bull, Justice Chase acknowledged that issue, even
Supreme Court noted that the Takings Clause offers a
as the Court upheld a retroactive law:
safeguard against retrospective laws affecting property
Every law that takes away, or impairs, rights vested
rights that is similar to the protection the Ex Post Facto
Clause provides in the realm of criminal law. A violation of
. . . is retrospective, and is generally unjust; and may
the Takings Clause may invalidate the government action at
be oppressive; and it is a good general rule, that a
issue or entitle the property owner to compensation.
law should have no retrospect.
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the
Analysis of a retroactive civil law under the Due Process
Court similarly proclaimed, “Elementary considerations of
Clause and the Takings Clause may overlap. For example,
fairness dictate that individuals should have an opportunity
the plurality opinion in Eastern Enterprises concluded that
to know what the law is and to conform their conduct
a 1992 law requiring a company that had ceased coal
accordingly.” In light of those concerns, courts have
mining operations in 1965 to pay millions of dollars into a
declined to construe statutes to apply retroactively absent
miners’ pension fund violated the Takings Clause because
clear evidence of congressional intent. Accordingly, if
the statute “improperly places a severe, disproportionate,
Congress intends civil legislation to have retroactive effect,
and extremely retroactive burden on Eastern.” Justice
it must clearly state that the law applies retroactively and
Kennedy, concurring in the judgment and dissenting in part,
may even wish to specify the period of retroactivity.
would instead have held that the statute violated the Due
Process Clause because it had “a retroactive effect of
Joanna R. Lampe, Legislative Attorney
IF11293
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Retroactive Legislation: A Primer for Congress
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